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Federal Court of Australia - Full Court |
Last Updated: 23 June 2008
FEDERAL COURT OF AUSTRALIA
Channel Seven Brisbane Pty Limited v Australian Competition & Consumer Commission [2008] FCAFC 114
TRADE PRACTICES – where
appellants published two broadcasts – whether appellants had engaged in
conduct in contravention of s 52 of the Trade Practices Act 1974
(Cth) (the Act) – whether appellants entitled to the benefit of the
exemption in s 65A of the Act – whether any statutory exception
contained in s 65A(1)(a) applied to the appellants such that the exemption
created by s 65A(1) did not apply – whether the reference in
s 65A(1)(a)(vi) of the Act to goods or services "of that kind" is a
reference to the goods or services of a kind supplied by the prescribed
information
provider as defined in the expression "relevant goods or services"
in s 65A(3) – whether the goods or services referred to in the two
broadcasts were of a kind supplied by the appellant – appeal allowed.
Trade Practices Act 1974 (Cth)
ss 52, 65A
Australian Ocean
Line Pty Ltd v West Australian Newspapers Ltd [1985] FCA 37; (1985) 58 ALR 549
cited
Global Sportsman Pty Ltd v Mirror Newspapers Ltd [1984] FCA 180; (1984)
2 FCR 82 cited
Second Reading Speech (Senate) Statute Law
(Miscellaneous Provisions) Act (No 2) 1984 (Cth) cited
Universal
Telecasters (Qld) Ltd v Guthrie (1978) 18 ALR 531 cited
CHANNEL SEVEN BRISBANE PTY
LIMITED ACN 009 684 020, CHANNEL SEVEN SYDNEY PTY LIMITED
ACN 000 145 246,
CHANNEL SEVEN MELBOURNE PTY LIMITED
ACN 004 342 303 and CHANNEL SEVEN PERTH PTY LIMITED
ACN 008 679 294
v AUSTRALIAN COMPETITION AND CONSUMER
COMMISSION
NSD 2129 OF 2007
SUNDBERG,
JACOBSON AND LANDER JJ
23 JUNE 2008
SYDNEY
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AND:
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THE COURT ORDERS THAT:
2. The declarations in paragraph 2 and 3 and the order in paragraph 1 of the orders made by the Federal Court of Australia on 12 October 2007 relating to the appellants (being the second, third, fourth and fifth respondents to the proceeding) be set aside and in lieu thereof it be ordered that:
(a) The proceeding be dismissed as against the second, third, fourth and fifth respondents to the proceeding.
(b) The respondent to the appeal pay the appellants’ costs of the proceeding.
3. The respondent to the appeal pay the appellants’ costs of the
appeal.
Note: Settlement
and entry of orders is dealt with in Order 36 of the Federal Court
Rules.
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ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF
AUSTRALIA
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|
BETWEEN:
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CHANNEL SEVEN BRISBANE PTY LIMITED
ACN 009 684 020 First Appellant CHANNEL SEVEN SYDNEY PTY LIMITED ACN 000 145 246 Second Appellant CHANNEL SEVEN MELBOURNE PTY LIMITED ACN 004 342 303 Third Appellant CHANNEL SEVEN PERTH PTY LIMITED ACN 008 679 294 Fourth Appellant |
|
AND:
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AUSTRALIAN COMPETITION AND CONSUMER
COMMISSION
Respondent |
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JUDGES:
|
SUNDBERG, JACOBSON AND LANDER JJ
|
|
DATE:
|
23 JUNE 2008
|
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PLACE:
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SYDNEY
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REASONS FOR JUDGMENT
THE COURT
1 The appellants are the licensees of television stations in Brisbane, Sydney, Melbourne and Perth, and are part of the Seven Network Limited. They have appealed against declarations and an order made by a judge of this Court on 12 October 2007.
2 The declarations were to the effect that the appellants had engaged in conduct that was misleading or deceptive, or likely to mislead or deceive, in contravention of s 52 of the Trade Practices Act 1974 (Cth) (the Act) in two broadcasts made by the appellants on 31 October 2003 and 30 January 2004. As well as the declarations, the primary judge granted an injunction restraining the appellants pursuant to s 80 of the Act from making or causing to be made in any form the representations, or representations to substantially the same effect, which formed the subject matter of the declarations.
3 The appellants seek an order setting aside the declarations and the order, and an order dismissing the proceeding brought by the respondent.
4 On 31 October 2003 and 30 January 2004 the appellants broadcast in their current affairs television program "Today Tonight", episodes reporting a mentoring program which had been created by Dymphna Boholt and Sandra Forster, both of whom were also respondents below.
5 In the episode of 31 October 2003, the appellants broadcast the following words:
COMPERE: The search is on for 150 women from all walks of life and all areas of the country. It’s a one year program to teach them the skills of making big money, a mentoring program called ‘Wildly Wealthy Women’, and we’ll see if the two ladies behind the program can live up to their promises over the next 12 months.
DYMPHNA BOHOLT: Anyone can be a millionaire if that’s what they want.
SANDRA FORSTER: I was able to create millions within a year and I’m going to show other people how to do it.
REPORTER: Dymphna Boholt and Sandy Forster are self-proclaimed wildly wealthy women on a mission to make other women filthy rich too.
DYMPHNA BOHOLT: [Indistinct] window for that. Cheapie in Nambour, $180,000...
REAL ESTATE AGENT: Yep.
DYMPHNA BOHOLT: Has that got a pool?
REAL ESTATE AGENT: No pool. We’ve just listed that one.
REPORTER: Through shrewd investment in real estate the pair have become millionaires, their secrets to be revealed in a mentoring program called ‘Wildly Wealthy Women’.
SANDRA FORSTER: Wildly wealthy to me pictures, you know, lots of women enjoying themselves, not just wealthy, but wildly wealthy having a lot of fun, so I just thought, wildly wealthy women.
REPORTER: Sandy, a former surf wear designer is now a prosperity coach teaching women how to think like millionaires. In eight months she’s bought more than $1 million worth of property with no money whatsoever.
SANDRA FORSTER: I mean I’ve only been studying real estate and real estate investing now for not even a year, so I think that’s a pretty good effort in that amount of time.
DYMPHNA BOHOLT: I came out of a divorce with $40,000 in my pocket and have been able to in a fairly short space of time put myself in a position where I do have that financial freedom, I do have that time freedom to be able to do what I want, when I want.
REPORTER: Dymphna is an accountant turned property guru.
DYMPHNA BOHOLT: So on these ones here, they’re all individual units, we spent about $10,000 on each property.
REPORTER: She now owns more than 60 properties all around Australia.
So how much have you made on these now?
DYMPHNA BOHOLT: Well we bought the whole complex for $480,000 about 18 months, two years ago, and we’ve knocked back offers in excess of a million dollars on them, so they’ve been a good little investment.
REPORTER: The knowledgeable pair are now on the hunt for hundreds of aspiring property millionaires to be part of their Wildly Wealthy Women mentoring program. Only the motivated need apply.
DYMPHNA BOHOLT: What we’re looking for right now is women from all around Australia so it doesn’t matter what locality they come from, it doesn’t matter what financial status they come from, it doesn’t matter about their background. What really matters is their commitment to achieve, their commitment to make a difference in their lives.
REPORTER: The nine month program costs nearly $3000. If that sounds a lot think again. They say they can turn anyone into a millionaire even those with no money.
SANDRA FORSTER: A lot of people think you need a lot of money in the bank, you need to have enormous big income, but you don’t. It’s just knowing how to do it.
REPORTER: From the program a select group of seven women will be chosen for one on one mentoring. They get the course for free and will be featured in their upcoming book.
DYMPHNA BOHOLT: We can help basically anybody.
REPORTER: For your chance to learn how to be a property millionaire log on to wildlywealthywomen.com.
SANDRA FORSTER: Anyone can be a millionaire within a year if she really focuses on it and that’s what we’re going to help them do.
COMPERE: Too good to be true? Well we’ll be following the scheme’s progress to let you know.
6 The respondent contended that six representations arose out of that broadcast:
(6) Ms Forster was a millionaire (‘the sixth representation’).(1) Participants in the Mentoring Program would become wealthy through investing in property (‘the first representation’).
(2) Participants in the Mentoring Program would become wealthy through investing in property even if they had no money at the time at which they commenced to participate in the Mentoring Program or to implement the strategies taught in the Mentoring Program (‘the second representation’).
(3) Participants in the Mentoring Program would become millionaires through investing in property (‘the third representation’).
(4) Ms Boholt owned in excess of 60 properties (‘the fourth representation’).
(5) Ms Forster had purchased over $1,000,000 worth of property using none of her own money (‘the fifth representation’).
7 The primary judge found that the representations were made. The primary judge classified the first, second and third representations as "Mentoring Program representations" and found that they were representations as to future matters. She classified the fourth, fifth and sixth representations as "Wildly Wealthy Women representations" and found them to be representations as to factual matters.
8 She found, because of the statements made by the reporter, that the appellants had adopted the Wildly Wealthy Women representations such that they were made by the appellants.
9 The words uttered by the reporter which she relied on for that finding were:
• ‘[t]hrough shrewd investment in real estate the pair have become millionaires’;
• ‘In eight months [Ms Forster has] bought more than $1 million worth of property with no money whatsoever’;
• ‘[Ms Boholt] is an accountant turned property guru...She now owns more than 60 properties all around Australia’.
10 She was not prepared to find, as the appellants had urged, that other words used by the compere or the reporter indicated that the appellants disclaimed the Wildly Wealthy Women representations. The words relied upon by the appellants for a claim of disclaimer were:
COMPERE: The search is on for 150 women from all walks of life and all areas of the country. It’s a one year program to teach them the skills of making big money, a mentoring program called ‘Wildly Wealthy Women’, and we’ll see if the two ladies behind the program can live up to their promises over the next 12 months.
REPORTER: Dymphna Boholt and Sandy Forster are self-proclaimed wildly wealthy women ...
...
COMPERE: Too good to be true? Well we’ll be following the scheme’s progress to let you know.
11 The primary judge found that viewing the first episode as a whole, the appellants had "embraced and advanced the proposition[s]" contained in the Wildly Wealthy Women representations.
12 However, she found that none of the Mentoring Program representations had been made by the appellants. In the case of those representations, she found that the disclaimer showed that the appellants intended to test the representations made by the two women and indicated a note of caution in relation to the representations and on the whole a disassociation from the representations.
13 In the second episode on 30 January 2004 the appellants broadcast the following words:
COMPERE: The women you’re about to meet have made millions of dollars, and now they want to share their money-making secrets.
They believe, with a bit of hard work and their knowledge, any of us can become a millionaire.
So, is it really that easy? Well, we’ve introduced them to a couple of everyday Australians to find out whether it can actually be done.
SANDRA FORSTER: Look at all these wonderful applications of all these women who want to be millionaires.
DYMPHNA BOHOLT: Isn’t it great?
SANDRA FORSTER: Yes, it’s fabulous.
REPORTER: From Thursday Island to Tasmania, the response has been overwhelming. More than 5,000 women who are not surprisingly desperate to make their first million in property.
DYMPHNA BOHOLT: Having passive income from property and having of millions of dollars worth of property isn’t that hard any more. And that’s what we’re trying to achieve for all of the women in the program.
REPORTER: About 600 women have paid almost $3000 each to join the nine month Wildly Wealthy Women Mentoring Program. A lucky seven women have been chosen from thousands to get the program for free.
DYMPHNA BOHOLT: Well you’ve been chosen as one of the seven to participate in the program. How do you feel?
REPORTER: Dymphna Boholt and Sandy Forster are the brains behind the property investment program.
SANDY FORSTER: In the stories that we’ve heard, the ones that have really I guess touched me the most are the ones that are very similar to my story. You know I look at these people and three or four years ago that was me. You know, they’ve got no money, they really want to make it happen but they’ve got no idea how to make it happen.
REPORTER: There’s no doubt property seminars have been given a bad name. Property spruiker, Henry Kaye the biggest offender, accused of causing ordinary Australians to lose millions.
However, these wildly wealthy women say their program is the real deal. Dymphna, an accountant, and Sandy, a prosperity coach, say they’ve created their own success and wealth from next to nothing and plan to teach other women to do the same.
DYMPHNA BOHOLT: We’ll be going through the types of property strategies that can be employed and the pros and cons of each of those strategies and when it suits their portfolio.
PRUE LOWEN: It’s just like winning the lottery, I can’t believe it. I’ve never won anything in my life so this is my big thing.
REPORTER: Prue Lowen is one of the lucky seven who don’t have to pay for the program, and she’s committed to give it her all.
PRUE LOWEN: I want to control $3 million worth of property within the next three years, because this will give me a really good income to be able to do the things that I want to do...
REPORTER: Canmaree Parks is another millionaire in the [making] property [sic].
CANMAREE PARKS: I love property, I really want to get into the property market, and Wildly Wealthy Women will provide sort of a step for me to get into that.
REPORTER: The 29 year old single mum works fulltime and has already set herself some pretty tough goals.
CANMAREE PARKS: I’d like to own my own home for my child and myself, as well as become a property millionaire within the next year, if that’s okay with everyone, yeah. So a property millionaire, yeah, yeah.
REPORTER: Do you think that’s possible?
CANMAREE PARKS: I think it is very possible.
DYMPHNA BOHOLT: Well the program is about educating women to be able to stand on their own two feet and invest in property and make a difference in their lives.
REPORTER: Justine Chamberlain is a stay at home mum who has also signed up to be a millionaire or, at the very least, own her first property.
JUSTINE CHAMBERLAIN: I really wanted to do the course, um because I knew it was going to give us all the education that we needed to invest in property.
REPORTER: But can these women become property millionaires? Well, over the next 9 months, we’ll be closely watching them to see if they actually become wildly wealth[y] women. We’ll let you know how they go.
PRUE LOWEN: You think, well, hey, what have I got to lose? It’s only money. So I’ll have a go. Go for broke.
COMPERE: Good on them. Simone Cunningham reporting.
14 The respondent contended that four representations arose out of that broadcast:
(1) Participants in the Mentoring Program would become wealthy through investing in property (‘the seventh representation’).
(2) Participants in the Mentoring Program would become wealthy through investing in property even if they had no money at the time at which they commenced to participate in the Mentoring Program or to implement the strategies taught in the Mentoring Program (‘the eighth representation’).
(3) Participants in the Mentoring Program would become millionaires through investing in property (‘the ninth representation’).
(4) Ms Forster had made millions of dollars through investing in property (‘the tenth representation’).
15 The primary judge found that the representations were made. The primary judge applied the same classification to these representations as to the representations in the first broadcast. She characterised the seventh, eighth and ninth representations as Mentoring Program representations and the tenth representation as a Wildly Wealthy Women representation.
16 She found that the appellants had, in the introductory words of the compere ("the women you’re about to meet have made millions of dollars and now they want to share their money-making secrets"), adopted the Wildly Wealthy Women representation and that none of the words used in the episode amounted to a disclaimer. The primary judge found that the appellants had not made any of the Mentoring Program representations.
17 There is no cross-appeal from her Honour’s decision so no further regard needs to be had to the Mentoring Program representations.
18 She found, on the affidavit evidence of the two women, that each of the fourth, fifth, sixth and tenth representations were false and that the appellants’ conduct in publishing the representations contravened s 52 of the Act.
19 The appellants have on this appeal complained of the findings made by the primary judge and contended that the primary judge should not have found that the appellants made any of the Wildly Wealthy Women representations. It is claimed that the primary judge should have found that those representations had been made by the two women alone and that the proceeding should have been dismissed as against the appellants.
20 We are not persuaded that there was not sufficient evidence for her Honour to make the findings which she did in relation to the Wildly Wealthy Women representations. In our opinion, having regard to the words used by the reporter in the first program and the words used by the compere in the second program, her Honour was entitled to find, notwithstanding the words which were said to amount to disclaimer in both programs, that the representations were made by the appellants.
21 Having found that the representations were made, it is clear beyond doubt that her Honour was entitled to find that the representations were false and that, subject to one other matter which we will now address, the conduct in making those representations was misleading or deceptive pursuant to s 52 of the Act.
22 The appellants not only defended the proceeding by reference to the matters already addressed but claimed that if any representations had been made by the appellants they were entitled to the benefit of the exemption in s 65A of the Act which provides:
(1) Nothing in section 52, 53, 53A, 55, 55A or 59 applies to a prescribed publication of matter by a prescribed information provider, other than:(a) a publication of matter in connection with:
(i) the supply or possible supply of goods or services;
(ii) the sale or grant, or possible sale or grant, of interests in land;(iii) the promotion by any means of the supply or use of goods or services; or
(iv) the promotion by any means of the sale or grant of interests in land;
where:
(v) the goods or services were relevant goods or services, or the interests in land were relevant interests in land, as the case may be, in relation to the prescribed information provider; or
(vi) the publication was made on behalf of, or pursuant to a contract, arrangement or understanding with:
(A) a person who supplies goods or services of that kind, or who sells or grants interests in land, being interests of that kind; or
(B) a body corporate that is related to a body corporate that supplies goods or services of that kind, or that sells or grants interests in land, being interests of that kind; or
(b) a publication of an advertisement.
(2) For the purposes of this section, a publication by a prescribed information provider is a prescribed publication if:
(3) In this section:(a) in any case--the publication was made by the prescribed information provider in the course of carrying on a business of providing information; or(b) in the case of a person who is a prescribed information provider by virtue of paragraph (a), (b) or (c) of the definition of prescribed information provider in subsection (3) (whether or not the person is also a prescribed information provider by virtue of another operation of that definition)--the publication was by way of a radio or television broadcast by the prescribed information provider.
prescribed information provider means a person who carries on a business of providing information and, without limiting the generality of the foregoing, includes:
(a) the holder of a licence granted under the Broadcasting Services Act 1992; and(aa) a person who is the provider of a broadcasting service under a class licence under that Act; and
(ab) the holder of a licence continued in force by subsection 5(1) of the Broadcasting Services (Transitional Provisions and Consequential Amendments) Act 1992; and
(b) the Australian Broadcasting Corporation; and
(c) the Special Broadcasting Service Corporation.
relevant goods or services, in relation to a prescribed information provider, means goods or services of a kind supplied by the prescribed information provider or, where the prescribed information provider is a body corporate, by a body corporate that is related to the prescribed information provider.
relevant interests in land, in relation to a prescribed information provider, means interests in land, being interests of a kind sold or granted by the prescribed information provider or, where the prescribed information provider is a body corporate, by a body corporate that is related to the prescribed information provider.
23 The primary judge rejected the appellants’ reliance upon s 65A of the Act and found that the publication in the two programs was made pursuant to an arrangement or understanding with the two women who supplied goods or services and, in those circumstances, the exemption which is offered in the opening words of s 65A(1) did not apply because the exception which is contained in paragraph (a) of s 65A(1) applied.
24 The primary judge held that s 65A(1) provides a general exemption from liability under s 52 but there is a statutory exception to that general exemption. She said that if s 65A(1)(a)(vi)(A) applied the appellants would lose the exemption.
25 She held, referring to Vines v Djordjevitch [1955] HCA 19; (1955) 91 CLR 512 and relying upon Shipping Corporation of India Ltd v Gamlen Chemical Co (Australasia) Proprietary Limited (1980) 147 CLR 147 that the burden of establishing that the exception in s 65A(1)(a) to the general exemption in s 65A(1) applied, lay upon the party asserting that the exception applied, in this case, the respondent. That proposition has not been challenged.
26 She identified the issues at [73]:
The issues on the construction of s 65A are:● Must the arrangement be to publish the matter which, but for the operation of s 65A would contravene s 52 of the Act, that is the Wildly Wealthy Women representations, or is it sufficient if it extends only to the content of the publication in a general sense?
● Does the reference to the supply of goods or services "of that kind" in sub paragraph (vi)(A) refer to:
○ goods or services in connection with which the publication was made (paragraph (a)); or
○ "relevant goods or services" in subparagraph (v)?
That is, does s 65A require the goods or services the subject of the publication to be "relevant goods or services" within the meaning of s 65A(3), such that the exception provided for in s 65A(1)(a) is concerned only with self-advertisements of the prescribed information provider; whether by the prescribed information provider or by a third person?
● Must the prescribed information provider be shown to have a commercial interest in the subject matter of the publication for the exception to the exemption in s 65A to apply?
27 She found that it was only necessary that there be an arrangement with a person who supplies goods or services of that kind and that the arrangement need not extend to the actual words spoken in the broadcast. Next, she found that the "goods and services of that kind" are not limited to "the relevant goods or services" in relation to the prescribed information provider. She found that the prescribed information provider need not have a commercial interest in the publication of the matter.
28 We have the misfortune to disagree with her Honour’s construction of s 65A.
29 Section 65A was introduced into the Act by the Statute Law (Miscellaneous Provisions) Act (No 2) 1984 (Cth). It was enacted as a result of three decisions of this Court which found that the media would contravene s 52 of the Act if it published information which was misleading or deceptive or likely to mislead or deceive a person, even if that conduct occurred within a news or current affair program: Universal Telecasters (Qld) Ltd v Guthrie (1978) 18 ALR 531; Global Sportsman Pty Ltd v Mirror Newspapers Ltd [1984] FCA 180; (1984) 2 FCR 82; Australian Ocean Line Pty Ltd v West Australian Newspapers Ltd [1985] FCA 37; (1985) 58 ALR 549.
30 In the Second Reading Speech in the Senate, the Minister said:
A new section 65A is to be inserted in the Trade Practices Act 1974 to clarify the application of certain of the consumer protection provisions of that Act to the Media and the other persons who carry on business of providing information. Recent decisions of the Federal Court have suggested that a newspaper publisher may be taken to have engaged in conduct that is misleading or deceptive for the purposes of section 52 of the Trade Practices Act if the newspaper contains inaccurate information. The Government recognises the need to maintain a vigourous (sic) free press, as well as an effective and enforceable Trade Practices Act. In doing so, the Government recognises that, whilst the problem may have been highlighted by a defamation action, similar considerations apply in respect of action for negligent mis-statement and actions for injurious falsehood. The Government also recognises that the difficulties in this area are experienced not only by the main newspaper, magazine and television publishers, but also by a wide range of other people who provide information. New section 65A will operate to exempt the media (and other persons who engage in businesses of providing information) from the operation of those provisions of Division 1 of Part V of the Trade Practices Act which could inhibit activities relating to the provision of news and other information. The exemption is not available, however, in respect of a publication of information relating to goods, services or land of a kind supplied by the information provider, or relating to goods, services or land where the publication is made pursuant to a contract, arrangement or understanding with a body corporate related to a body corporate that supplies such goods, services or land. These provisions ensure that information providers are not exempt from the consumer protection provisions of the Trade Practices Act in respect of the provision of information where they have what might be regarded as a commercial interest in the content of the information. In such cases, information providers must take the same responsibility for the accuracy of information as any other person who publishes information in trade or commerce. This can occur, for example, where a newspaper has agreed to publish a ‘news’ item about a product in exchange for the product supplier taking out paid advertising in that publication.31 Section 65A only applies to a prescribed publication of matter by a prescribed information provider. A prescribed information provider must carry on a business of providing information. Information is not defined in the section but, having regard to the parties identified in (a) to (c) of the definition in s 65A(3), the print and electronic media must be thought to be prescribed information providers. Whilst the section applies to a person who carries on a business of providing information (a prescribed information provider), it only applies to those persons in relation to a publication by them of a prescribed publication of matter.
32 Section 65A(2) defines a prescribed publication. Section 65A(2)(a) makes any publication made by a prescribed information provider in the course of carrying on a business of providing information a prescribed publication. With the exception of the particular parties in paragraphs (a), (b), and (c) of the definition of prescribed information provider, a prescribed information provider must be a person who carries on a business of providing information. Section 65A therefore only operates to relieve a prescribed information provider when the prescribed information provider is carrying on its business of providing information. Therefore, where a prescribed information provider engages in conduct which would contravene the sections referred to in s 65A(1) whilst not carrying out its business of providing information, it obtains no relief by way of s 65A.
33 However, the parties mentioned in paragraphs (a), (b) and (c) to the definition of prescribed information provider in s 65A(3) are separately considered in s 65A(2)(b). In their case, they will have broadcast a prescribed publication simply by reason of the broadcast.
34 Therefore, the licensee of a radio or television station will be entitled to claim the protection of the section in relation to any broadcast whether or not it is in the business of providing information.
35 That is so, even if the licensee is otherwise a prescribed information provider by reason of it carrying on a business of providing information. Licensees of radio and television stations are therefore in the privileged position of being able to claim the benefit of the section in relation to any broadcast. Assuming, therefore, that the prescribed information provider is either a licensee of a radio or television station or a person who is carrying on a business of providing information, then nothing in ss 52, 53, 53A, 55, 55A or 59 applies to that prescribed information provider. Those prescribed information providers are exempted from those provisions of the Act. The exemption is in the widest possible terms. It keeps harmless a corporation which in trade or commerce engages in conduct that is misleading or deceptive, or is likely to mislead or deceive; makes any of the false or misleading representations referred to in s 53 of the Act; makes any of the false representations or offers any of the items or engages in any of the conduct in s 53A of the Act; engages in conduct that is misleading within the meaning of s 55 of the Act; engages in any of the conduct that is misleading of the kind in s 55A of the Act; or makes any of the false or misleading representations referred to in s 59 of the Act.
36 Because nothing in those sections applies to those prescribed information providers in respect of a prescribed publication, no remedy, whether by way of injunction or damages, is available to any person who is injured by any conduct of the kind predicated in those sections.
37 Having given that wide exemption, s 65A then excepts a publication of the kind in paragraphs (a) or (b) of s 65A(1). It does so by taking away the protection given to the prescribed publication in the various different circumstances in paragraphs (a) and (b).
38 It is convenient to deal with s 65A(1)(b) first. Section 65A excepts from the exemption offered in subsection (1) the publication of an advertisement by a prescribed information provider: s 65A(1)(b). Therefore, if an advertisement published by a prescribed information provider contravenes any of the sections mentioned in s 65A(1), the prescribed information provider will not be entitled to the exemption in subsection (1) and will be liable for the contravention. The section does not define "advertisement". Ordinarily, there will be no difficulty in determining what is an advertisement. The advertisement will usually announce itself. An advertisement might include an advertorial or it might be that an advertorial is the subject matter of (a).
39 Section 65A also excepts from the exemption a publication of the kind in paragraph (a). Relevantly, it excepts from the exemption a publication of matter in connection with the supply or possible supply of goods or services, or the promotion by any means of the supply or use of goods or services, where the goods or services were relevant goods or services, or the publication was made on behalf of or pursuant to a contract arrangement or understanding with a person or a body corporate that is related to a body corporate who supplies goods or services of that kind. To put it that way is not to deconstruct the section but to identify the relevant elements.
40 It is convenient to deal first with the first exception under paragraph (a). A prescribed information provider who publishes matter in connection with the supply or possible supply of goods or services which are relevant goods or services in relation to the prescribed information provider will not be entitled to the exemption given in s 65A(1).
41 "Relevant goods or services" is defined in subsection (3) and is defined by reference to a prescribed information provider, so can only relate to a prescribed information provider.
42 Therefore, under s 65(1)(a), the first exception to the exemption applies where a prescribed information provider has made a publication of matter in connection with the supply or possible supply of goods or services where the goods or services were goods or services of a kind supplied by the same prescribed information provider.
43 In other words, where a prescribed information provider publishes matter in connection with the supply of goods or services of a kind supplied by the prescribed information provider, the prescribed information provider will not be entitled to an exemption if the publication contravenes any of the sections mentioned in s 65A(1). The second exception to the exemption is contained in s 65A(1)(a)(vi) and it is in two parts. It is only necessary to deal with the first part because the same reasoning applies to both parts.
44 A prescribed information provider will not be entitled to the exemption in s 65A(1) for the publication of matter in connection with the supply or possible supply of services where the publication was made on behalf of, or pursuant to a contract, arrangement or understanding with a person who supplies goods or services of that kind if the publication contravenes any of the sections in s 65A(1).
45 The first matter to observe is that the person referred to in s 65A(1)(a)(vi)(A) is not the prescribed information provider or may not be any other prescribed information provider. It follows, therefore, that the person referred to in that paragraph may be a person who is not in the business of providing information. So the exemption which is offered to a prescribed information provider may be lost if the prescribed information provider makes a publication of matter in connection with the supply or possible supply of goods or services on behalf of or pursuant to a contract, arrangement or understanding with a person who is not in the business of providing information but who supplies goods or services of that kind.
46 The second matter to be observed is that the exemption is only lost if the prescribed information provider makes a publication of matter in connection with the supply or possible supply of goods or services on behalf of, or pursuant to a contract, arrangement or understanding with, a person who supplies goods or services of that kind. The question which next must be answered is, what is meant by goods or services of that kind?
47 In our opinion, the reference in s 65A(1)(a)(vi)(A) to goods or services "of that kind" is a reference to the goods or services of a kind supplied by the prescribed information provider as defined in the expression "relevant goods or services".
48 There are four reasons for concluding that the goods or services referred to in s 65A(1)(a)(vi)(A) and (B) are the kind of goods or services referred to in the definition of "relevant goods or services" in s 65A(3).
49 First, the expression is "goods or services of that kind". That means there must be a reference earlier in the section to goods or services of a kind. That follows from the use of the word "that" which qualifies the kind of goods or services. It must be referring to some earlier mentioned goods or services.
50 Secondly, in the whole of s 65A there is only one reference to goods or services of a kind and that is in relation to the kind of goods or services referred to in the "relevant goods or services". There is no "kind" of goods or services in s 65A(1)(a).
51 Thirdly, placita (v) and (vi) of s 65A(1)(a) are alternatives, only one of which needs to be established to cause the exception to operate upon the exemption. In those circumstances, alternatives must be read contextually and, in particular, in their context with each other. In those circumstances, where both of the placita refer to goods or services and when the alternative to the first proposition talks of goods or services of that kind, the alternative must be addressing the kind of goods or services mentioned in the first proposition.
52 Fourthly, the drafter could not use the defined term "relevant goods and services" in s 65A(3) in s 65A(1)(a)(vi)(A) or (B) because, as defined, "relevant goods or services" only applies to a prescribed information provider and s 65A(1)(a)(vi)(A) and (B) are directed to persons and corporations who may not be prescribed information providers. So the drafter has used the expression "goods and services of that kind" referring to the goods or services in the definition which is incorporated in s 65A(1)(a)(v).
53 It follows, therefore, that s 65A(1)(a)(vi)(A) must be referring to a person who supplies goods or services of a kind supplied by the prescribed information provider who is seeking the benefit of the exemption.
54 If a construction is given to s 65A(1)(a)(vi)(A) and (B) so that it applies to any goods or services of any kind, then placita (v) and (vi) cease to be alternatives that govern the placita in (i) to (iv). Indeed, they would speak to quite different circumstances. Placita (v) would be concerned with goods and services only of the kind provided by the broadcaster in the case of a licensee of a radio or television station, while (vi) would be concerned with any goods or services of any kind. If placita (vi) were to be given that construction, there would be no need for placita (v).
55 Viewed in that way, s 65A(1)(a)(vi) complements s 65A(1)(a)(v) so that if a prescribed information provider has made a publication in connection with the supply or possible supply of goods or services, the exemption will be lost if the goods or services were of a kind supplied by the prescribed information provider or the publication was made on behalf of or pursuant to a contract, arrangement or understanding, with a person who supplies goods or services of a kind supplied by the prescribed information provider.
56 In other words, the purpose of s 65A(1)(a)(vi) is to extend the exception to not only include the publication of matter in connection with the supply or possible supply of goods or services by the prescribed information provider itself, but also to goods or services of the kind supplied by the prescribed information provider but, in fact, supplied by some other person on its behalf or pursuant to a contract, arrangement or understanding with that other person.
57 If too wide a construction is given to the exception it will mean that there may be nothing left of the exemption.
58 If the section is understood in the way described, many of the other matters raised by both parties disappear.
59 There was a controversy before the primary judge as to whether the prescribed information provider who had made a publication on behalf of or pursuant to a contract, arrangement or understanding needed to have agreed to or "at least known of the words to be published". If the exception is limited to publication of goods or services provided by the prescribed information provider, then that is not a matter of moment because the prescribed information provider would know whether what was to be published was or was not false, misleading or deceptive.
60 Upon the construction at which we have arrived, the prescribed information provider need only make the publication on behalf of a person who supplies goods or services of the kind supplied by the prescribed information provider or pursuant to the contract, arrangement or understanding with such a person. The content of the publication would be known to the prescribed information provider. Therefore we agree with her Honour’s conclusion in this regard but for those different reasons.
61 The question of a commercial interest can be answered in the same way. The commercial interest will be apparent to both the prescribed information provider and to the person mentioned in s 65A(1)(a)(vi) because both will be in the business of supplying the kind of goods or services the subject matter of the publication.
62 The goods or services which were referred to and perhaps promoted in the two broadcasts were not of a kind supplied by the appellants. The appellants do not supply or promote services of the kind referred to by the two women (who were respondents below) or the reporter. It follows that the exception to the exemption did not come into play. In those circumstances, the appellants are entitled to the exemption offered in s 65A(1) as prescribed information providers and nothing in s 52 applied to the prescribed publication in the broadcasts.
63 The appellants therefore could not contravene s 52. The proceeding should have been dismissed.
64 We would:
(1) allow the appeal; and
(2) set aside the declarations and order relating to the appellants.
65 In lieu thereof order:
(3) the proceeding be dismissed as against the appellants;
(4) the respondent pay the appellants’ costs of the proceeding;(5) the respondent pay the appellants’ costs of the appeal.
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Solicitor for the Appellants:
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Freehills
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Counsel for the Respondent:
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Mr S T White SC appearing with Ms J S Gleeson
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Solicitor for the Respondent:
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Australian Government Solicitor
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AustLII:
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URL: http://www.austlii.edu.au/au/cases/cth/FCAFC/2008/114.html